Fourth Amendment Wins in the Baltimore Plane Surveillance Case: NMA E-Newsletter #654

“Allowing the police to wield this power unchecked is anathema to the values enshrined in our Fourth Amendment,” wrote Fourth Circuit US Court of Appeals Chief Judge Roger Gregory in late June. The case, Leaders of a Beautiful Struggle v. Baltimore Police Department, involved the use of aerial surveillance that continuously tracked and monitored the activities of citizens across most of Baltimore.

The captured images were then stored so that police could, without the use of a warrant, track the movements of suspected criminals over time.

The surveillance began in 2016 when the Baltimore Police Department (BPD) announced that it planned to fight crime with a program called Aerial Investigation Research (AIR). The cameras attached to three small planes would record ground movements of individuals as the pilots crisscrossed the city during daylight hours. The program was quickly discontinued due to the public outcry over the egregious violations of privacy.

After the appointment of a new police chief, the program was revived in April 2020 for a six-month trial. Under the new AIR program, cameras in the sky again monitored movements in the city. This time the information gathered was integrated with a network of 800 other surveillance systems including automated license plate readers on the streets. Facial recognition technology was also added.

The community activist group, Leaders of a Beautiful Struggle, filed a lawsuit against Baltimore that same month, requesting a preliminary injunction to prevent BDP from using the reconfigured AIR program. The group sued the city on the grounds that aerial tracking of the movements of its members without a court order was unconstitutional.

The district court denied the motion. The AIR program continued its trial run until October 2020, when the 180-day trial was over. By that time, AIR had accumulated nearly 6.7 million images for police review. The BPD deleted all but 14 percent of the images (950,000) that it felt were the minimum amount necessary to support 200 cases being prosecuted at the time. Baltimore suspended the program in February 2021, hoping to get the case declared moot to avoid a ruling. The Fourth Circuit Court, however, determined that the debate over the use of aerial surveillance constituted a ‘live controversy.’ The majority of judges then granted an injunction against using any footage obtained under the auspices of the aerial surveillance.

David Rocah, senior attorney for the American Civil Liberties Union of Maryland, said about the decision, “Essentially what the court is saying that all of this data is the fruit of the poisonous tree.”

Overall, concerns about aerial surveillance intensified in 2021 after the public discovered that the Department of Homeland Security used aerial drones to spy on George Floyd protestors. Among groups that signed amicus briefs supporting the Leaders of a Beautiful Struggle included the Brennan Center of Justice, Electronic Frontier Foundation, FreedomWorks Foundation, NAACP, National Association of Criminal Defense Lawyers, and The Rutherford Institute. The plaintiff argued that the tracking of over half a million people per day plus the collection of data is a severe infringement on the rights of assembly, free speech, and privacy protected under the First Amendment.

In an online post, John W. Whitehead, president of The Rutherford Institute, wrote, “By subjecting Americans to surveillance without their knowledge or compliance and then storing the data for later use, the government has erected the ultimate suspect society. In such an environment, there is no such thing as innocent until proven guilty.”

ACLU’s David Rocah also stated, “Here we have a rare instance where the law is grappling with the technology prior to its widespread deployment.” He added, “Calling this a virtual time machine is not an exaggeration. I think it was extraordinarily important that we are able to get the courts to grapple with this at the outset.” Rocah stated that the Fourth Circuit ruling should warn off other cities from flying such spy planes.

The majority opinion drew heavily from the 2018 Supreme Court decision, Carpenter v. the United States. That case focused on the warrantless tracking of people via cellphone. Chief Justice John Roberts wrote in the Carpenter ruling, “A person does not surrender all Fourth Amendment protection by venturing into the public sphere.”

Fourth Circuit Court Justice Roger Gregory stated for the majority opinion in the  Baltimore ruling, Carpenter solidified the line between short-term tracking of public movements—akin to what law enforcement could do prior to the digital age—and prolonged tracking that can reveal intimate details through habits and patterns.” He continued, “The latter form of surveillance invades the reasonable expectation of privacy that individuals have in the whole of their movements and therefore requires a warrant.”

The city of Baltimore is now considering what to do next.

The Fourth Amendment is beautiful in its simplicity and powerful in the fundamental protections it provides to the citizenry. The courts must continue to uphold these words as the Founding Fathers intended:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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